A new basic right for IT privacy

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Monika Griefahn and Jörg Tauss, members of parliament for Germany's Social Democratic Party (SPD), welcome the Constitutional Court's ruling restricting online surveillance by government authorities.

The Federal Constitutional Court has ruled that plans for online surveillance in North Rhine-Westphalia are unconstitutional. In doing so, the Constitutional Court has vindicated the SPD's parliamentary group's criticism of Interior Minister Wolfgang Schäuble.

Schäuble's plans raised considerable legal and technical concerns about infringing on privacy protection for both private persons and data. That's why we demanded putting off the decision to authorize this covert investigation method in federal police investigations until the court made its decision.

But above all, the Constitutional Court has confirmed for the first time that there is a basic right protecting the confidentiality and integrity of information technology systems.

This new basic right joins other protected liberties, in particular the confidentiality of telecommunications, the inviolability of the home, as well as the right to control personal information, so long as these don't offer enough protection on their own. This new basic right is of fundamental importance to media policy and it must now be determined which consequences there are beyond that of the impact on online surveillance.

The Court has also declared that in light of this newly-formulated basic right ensuring the confidentiality and integrity of IT systems, online investigations will only be allowed in very few cases in order to prevent serious crimes. Infringing on this basic right will only be possible with the strictest legal safeguards.

Moreover, any online surveillance must still ensure that private matters are kept confidential of private matters and, if possible, any limits on investigations and admissibility of evidence must be given precedence. Any use of this controversial investigation method requires a court order. This legal safeguard will help maintain the balance between liberty and public safety.

As far as the implementation of the Constitutional Court's ruling goes, the guiding principle must remain thoroughness before speed. Overly hasty decisions are neither necessary nor appropriate.

The guidelines set out by the judges must now be carefully evaluated in the context of this new basic right protecting the confidentially and integrity of data. The BKA bill put forth by Interior Minister Wolfgang Schäuble will need to be amended accordingly.

Overall, the media and data protection experts of the SPD parliamentary group believe the Constitutional Court's ruling vindicates their position on online surveillance. We will continue to demand the technical aspects and implications – especially the constitutionality – of this covert investigation method be properly clarified and ensure the usage of such methods adheres to constitutional requirements.

Monika Griefahn is the spokesperson for the SPD's parliamentary committee for media and culture issues and Jörg Tauss is the spokesperson for the party's parliamentary committee for education and research issues. Translation by The Local.